The Common Law and Civil Law Traditions
If you are a working professional looking to expand your legal education, learn more In civil law countries, judges are often described as “investigators. Please complete the following questions so we can best support you. Question 4 5 out of 5 points Our relationship with the law is best described by which of the following? Selected Answer: To a significant extent, law codifies a. Law is a system of rules that are created and enforced through social or governmental institutions to regulate behavior. It has been defined both as "the Science of Justice" and "the Art of Justice". . domination. Furthermore, after negotiations lasting fifteen years, in China joined the World Trade Organization.
Modern civil law systems essentially derive from the legal practice of the 6th-century Eastern Roman Empire whose texts were rediscovered by late medieval Western Europe. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class.
Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. From — AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before.
Legal Positivism (Stanford Encyclopedia of Philosophy)
As one legal historian wrote, "Justinian consciously looked back to the golden age of Roman law and aimed to restore it to the peak it had reached three centuries before. Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, and scholars at the University of Bologna used it to interpret their own laws. Both these codes influenced heavily not only the law systems of the countries in continental Europe e.
Greecebut also the Japanese and Korean legal traditions. Common law and equity[ edit ] Main article: Common law King John of England signs Magna Carta In common law legal systemsdecisions by courts are explicitly acknowledged as "law" on equal footing with statutes adopted through the legislative process and with regulations issued by the executive branch.
The "doctrine of precedent", or stare decisis Latin for "to stand by decisions" means that decisions by higher courts bind lower courts, and future decisions of the same court, to assure that similar cases reach similar results. In contrastin " civil law " systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed, because the judge or barrister is only writing to decide the single case, rather than to set out reasoning that will guide future courts.
Common law originated from England and has been inherited by almost every country once tied to the British Empire except Malta, Scotlandthe U. In medieval England, the Norman conquest the law varied-shire-to-shire, based on disparate tribal customs. The concept of a "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges that had authority to create an institutionalized and unified system of law "common" to the country.
The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of also required that the King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.
Infor instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five. As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgment to do what was equitable in a case. From the time of Sir Thomas Morethe first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery.
At first, equity was often criticized as erratic, that it varied according to the length of the Chancellor's foot. In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law, and to argue for change.
William Blackstonefrom aroundwas the first scholar to collect, describe, and teach the common law. Religious law Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia —both of which translate as the "path to follow"—while Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability, because the word of God cannot be amended or legislated against by judges or governments.
Nor can it be a social fact, for Kelsen maintains that the reason for the validity of a norm must always be another norm -- no ought from is.
It follows, then, that a legal system must consist of norms all the way down. It bottoms in a hypothetical, transcendental norm that is the condition of the intelligibility of any and all other norms as binding.
There are many difficulties with this, not least of which is the fact that if we are willing to tolerate the basic norm as a solution it is not clear why we thought there was a problem in the first place. One cannot say both that the basic norm is the norm presupposing which validates all inferior norms and also that an inferior norm is part of the legal system only if it is connected by a chain of validity to the basic norm. We need a way into the circle. Moreover, it draws the boundaries of legal systems incorrectly.
The Canadian Constitution of was lawfully created by an Act of the U. Parliament, and on that basis Canadian law and English law should be parts of a single legal system, rooted in one basic norm: If law cannot ultimately be grounded in force, or in law, or in a presupposed norm, on what does its authority rest? The most influential solution is now H. His solution resembles Kelsen's in its emphasis on the normative foundations of legal systems, but Hart rejects Kelsen's transcendentalist, Kantian view of authority in favour of an empirical, Weberian one.
For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: It exists only because it is practiced by officials, and it is not only the recognition rule or rules that best explains their practice, it is rule to which they actually appeal in arguments about what standards they are bound to apply.
What is the Difference Between Common Law and Civil Law? - Blog | @WashULaw
Hart's account is therefore conventionalist see Marmor, and Coleman, Thus for Hart too the legal system is norms all the way down, but at its root is a social norm that has the kind of normative force that customs have.
It is an important feature of Hart's account that the rule of recognition is an official custom, and not a standard necessarily shared by the broader community. If the imperativalists' picture of the political system was pyramidal power, Hart's is more like Weber's rational bureaucracy.
Law is normally a technical enterprise, characterized by a division of labour. Ordinary subjects' contribution to the existence of law may therefore amount to no more than passive compliance. And this division of labour is not a normatively neutral fact about law; it is politically charged, for it sets up the possibility of law becoming remote from the life of a society, a hazard to which Hart is acutely alertp.
Although Hart introduces the rule of recognition through a speculative anthropology of how it might emerge in response to certain deficiencies in a customary social order, he is not committed to the view that law is a cultural achievement. To the contrary, the idea that legal order is always a good thing, and that societies without it are deficient, is a familiar element of many anti-positivist views, beginning with Henry Maine's criticism of Austin on the ground that his theory would not apply to certain Indian villages.
The objection embraces the error it seeks to avoid. It imperialistically assumes that it is always a bad thing to lack law, and then makes a dazzling inference from ought to is: If one thinks that law is a many splendored thing, one will be tempted by a very wide concept of law, for it would seem improper to charge others with missing out.
Positivism simply releases the harness. Law is a distinctive form of political order, not a moral achievement, and whether it is necessary or even useful depends entirely on its content and context.
Societies without law may be perfectly adapted to their environments, missing nothing. A positivist account of the existence and content of law, along any of the above lines, offers a theory of the validity of law in one of the two main senses of that term see Harris, pp. Kelsen says that validity is the specific mode of existence of a norm. An invalid marriage is not a special kind of marriage having the property of invalidity; it is not a marriage at all.
In this sense a valid law is one that is systemically valid in the jurisdiction -- it is part of the legal system. This is the question that positivists answer by reference to social sources. It is distinct from the idea of validity as moral propriety, i. For the positivist, this depends on its merits. One indication that these senses differ is that one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified.
For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth. No legal positivist argues that the systemic validity of law establishes its moral validity, i. Even Hobbes, to whom this view is sometimes ascribed, required that law actually be able to keep the peace, failing which we owe it nothing. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences and both acknowledge that disobedience is therefore sometimes fully justified.
Hart thinks that there is only a prima facie duty to obey, grounded in and thus limited by fairness -- so there is no obligation to unfair or pointless laws Hart Raz goes further still, arguing that there isn't even a prima facie duty to obey the law, not even in a just state Razpp.
The peculiar accusation that positivists believe the law is always to be obeyed is without foundation. Moral Principles and the Boundaries of Law The most influential criticisms of legal positivism all flow, in one way or another, from the suspicion that it fails to give morality its due. A theory that insists on the facticity of law seems to contribute little to our understanding that law has important functions in making human life go well, that the rule of law is a prized ideal, and that the language and practice of law is highly moralized.
Accordingly, positivism's critics maintain that the most important features of law are not to be found in its source-based character, but in law's capacity to advance the common good, to secure human rights, or to govern with integrity. It is a curious fact about anti-positivist theories that, while they all insist on the moral nature of law, without exception they take its moral nature to be something good. The idea that law might of its very nature be morally problematic does not seem to have occurred to them.
It is beyond doubt that moral and political considerations bear on legal philosophy. As Finnis says, the reasons we have for establishing, maintaining or reforming law include moral reasons, and these reasons therefore shape our legal concepts p. This vitiates also Lon Fuller's criticisms of Hart Fuller, and Apart from some confused claims about adjudication, Fuller has two main points. Even if moral properties were identical with, or supervened upon, these rule-of-law properties, they do so in virtue of their rule-like character, and not their law-like character.
Whatever virtues inhere in or follow from clear, consistent, prospective, and open practices can be found not only in law but in all other social practices with those features, including custom and positive morality.
And these virtues are minor: Fuller's second worry is that if law is a matter of fact, then we are without an explanation of the duty to obey. One possibility he neglects is that it doesn't. The fact that law claims to obligate is, of course, a different matter and is susceptible to other explanations Green Yet promising creates moral obligations of performance or compensation. While Finnis and Fuller's views are thus compatible with the positivist thesis, the same cannot be said of Ronald Dworkin's important works Dworkin and Positivism's most significant critic rejects the theory on every conceivable level.
He denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its merits, and he rejects the whole institutional focus of positivism.
A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of political organization, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.
Force must only be deployed, he claims, in accordance with principles laid down in advance. A society has a legal system only when, and to the extent that, it honors this ideal, and its law is the set of all considerations that the courts of such a society would be morally justified in applying, whether or not those considerations are determined by any source. To identify the law of a given society we must engage in moral and political argument, for the law is whatever requirements are consistent with an interpretation of its legal practices subject to a threshold condition of fit that shows them to be best justified in light of the animating ideal.
In addition to those philosophical considerations, Dworkin invokes two features of the phenomenology of judging, as he sees it. He finds deep controversy among lawyers and judges about how important cases should be decided, and he finds diversity in the considerations that they hold relevant to deciding them. The controversy suggests to him that law cannot rest on an official consensus, and the diversity suggests that there is no single social rule that validates all relevant reasons, moral and non-moral, for judicial decisions.
Dworkin's rich and complex arguments have attracted various lines of reply from positivists. One response denies the relevance of the phenomenological claims. Controversy is a matter of degree, and a consensus-defeating amount of it is not proved by the existence of adversarial argument in the high courts, or indeed in any courts. As important is the broad range of settled law that gives rise to few doubts and which guides social life outside the courtroom.
As for the diversity argument, so far from being a refutation of positivism, this is an entailment of it. Positivism identifies law, not with all valid reasons for decision, but only with the source-based subset of them.
It is no part of the positivist claim that the rule of recognition tells us how to decide cases, or even tells us all the relevant reasons for decision. Positivists accept that moral, political or economic considerations are properly operative in some legal decisions, just as linguistic or logical ones are.
Modus ponens holds in court as much as outside, but not because it was enacted by the legislature or decided by the judges, and the fact that there is no social rule that validates both modus ponens and also the Municipalities Act is true but irrelevant. The authority of principles of logic or morality is not something to be explained by legal philosophy; the authority of acts of Parliament must be; and accounting for the difference is a central task of the philosophy of law. Other positivists respond differently to Dworkin's phenomenological points, accepting their relevance but modifying the theory to accommodate them.
And judges may develop a settled practice of doing this whether or not it is required by any enactment; it may become customary practice in certain types of cases. Reference to moral principles may also be implicit in the web of judge-made law, for instance in the common law principle that no one should profit from his own wrongdoing. Such moral considerations, inclusivists claim, are part of the law because the sources make it so, and thus Dworkin is right that the existence and content of law turns on its merits, and wrong only in his explanation of this fact.
Legal validity depends on morality, not because of the interpretative consequences of some ideal about how the government may use force, but because that is one of the things that may be customarily recognized as an ultimate determinant of legal validity. It is the sources that make the merits relevant.
The Common Law and Civil Law Traditions
To understand and assess this response, some preliminary clarifications are needed. First, it is not plausible to hold that the merits are relevant to a judicial decision only when the sources make it so. It would be odd to think that justice is a reason for decision only because some source directs an official to decide justly.
It is of the nature of justice that it properly bears on certain controversies. In legal decisions, especially important ones, moral and political considerations are present of their own authority; they do not need sources to propel them into action. Second, the fact that there is moral language in judicial decisions does not establish the presence of moral tests for law, for sources come in various guises.
What sounds like moral reasoning in the courts is sometimes really source-based reasoning. Those are source-based matters, not moral ones. This is just one of many appeals to positive morality, i.
What is the Difference Between Common Law and Civil Law?
Moreover, it is important to remember that law is dynamic and that even a decision that does apply morality itself becomes a source of law, in the first instance for the parties and possibly for others as well. Over time, by the doctrine of precedent where it exists or through the gradual emergence of an interpretative convention where it does not, this gives a factual edge to normative terms.
Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, etc. Hart sees this as happening pre-eminently in hard cases in which, owing to the indeterminacy of legal rules or conflicts among them, judges are left with the discretion to make new law.
First, discretionary judgments are not arbitrary: Second, Hart's account might wrongly be taken to suggest that there are fundamentally two kinds of cases, easy ones and hard ones, distinguished by the sorts of reasoning appropriate to each. A more perspicuous way of putting it would be to say that there are two kinds of reasons that are operative in every case: Law application and law creation are continuous activities for, as Kelsen correctly argued, every legal decision is partly determined by law and partly underdetermined: This is a general truth about norms.
Sometimes such residual discretion is of little importance; sometimes it is central; and a shift from marginal to major can happen in a flash with changes in social or technological circumstances.
It has to be said, however, that Hart himself does not consistently view legal references to morality as marking a zone of discretion.
This thought sits uneasily with other doctrines of importance to his theory. The concept of a legal rule, that is, does not include all correctly reasoned elaborations or determinations of that rule. Later, however, Hart comes to see his remark about the U. National Archives, Washington, DC. English common law emerged from the changing and centralizing powers of the king during the Middle Ages.
After the Norman Conquest inmedieval kings began to consolidate power and establish new institutions of royal authority and justice. New forms of legal action established by the crown functioned through a system of writs, or royal orders, each of which provided a specific remedy for a specific wrong.
The system of writs became so highly formalized that the laws the courts could apply based on this system often were too rigid to adequately achieve justice. In these cases, a further appeal to justice would have to be made directly to the king. Courts of equity were authorized to apply principles of equity based on many sources such as Roman law and natural law rather than to apply only the common law, to achieve a just outcome.
Courts of law and courts of equity thus functioned separately until the writs system was abolished in the mid-nineteenth century. Even today, however, some U. Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern practice of common law. An example is the writ of habeas corpus, which protects the individual from unlawful detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of habeas corpus summoned the prisoner to court to determine whether he was being detained under lawful authority.
Habeas corpus developed during the same period that produced the Magna Carta, or Great Charter, which declared certain individual liberties, one of the most famous being that a freeman could not be imprisoned or punished without the judgment of his peers under the law of the land—thus establishing the right to a jury trial.
In the Middle Ages, common law in England coexisted, as civil law did in other countries, with other systems of law. Church courts applied canon law, urban and rural courts applied local customary law, Chancery and maritime courts applied Roman law. Only in the seventeenth century did common law triumph over the other laws, when Parliament established a permanent check on the power of the English king and claimed the right to define the common law and declare other laws subsidiary to it.
This evolution of a national legal culture in England was contemporaneous with the development of national legal systems in civil law countries during the early modern period. But where legal humanists and Enlightenment scholars on the continent looked to shared civil law tradition as well as national legislation and custom, English jurists of this era took great pride in the uniqueness of English legal customs and institutions.
That pride, perhaps mixed with envy inspired by the contemporary European movement toward codification, resulted in the first systematic, analytic treatise on English common law: The American legal system remains firmly within the common law tradition brought to the North American colonies from England.